Standard Terms & Conditions for Affiliates
In these Terms and Conditions, the following words shall have the following meaning:
"Affiliate", ?You? or ?Your? means a person or legal entity whose application for participation in the Affiliate Programme has been accepted by the Service Provider and whose name appears in Part A of the Schedule;
"Affiliate Programme" means the programme for affiliation between the Service Provider and the Affiliate more particularly described in clause 3 of these Terms and Conditions;
"Agreement" means this Agreement for the Affiliate's participation in the Affiliate Programme and as governed by the Terms and Conditions;
"Application" means the Affiliate?s application for participation in the Affiliate Programme;
"Data Protection Laws" means any applicable law relating to the processing, privacy and/or use of personal data, as applicable to either Party and/or to the rights, responsibilities or obligations of either Party in connection with this Agreement including but not limited to the General Data Protection Regulation(EU) 2016/679; the Data Protection Act 2018; any laws which implement any such laws; and any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
"Fee" or "Fees" means the fee payable by the Service Provider to the Affiliate for the introduction of a client satisfying the criteria set out in the Schedule and the amount set out therein;
"Parties" means the Service Provider and the Affiliate together and "Party" shall mean either the Service Provider or the Affiliate as the context dictates;
"Schedule" means the schedule that will be sent by the Service Provider to the Affiliate on acceptance of the Affiliate's application for participation in the Affiliate Programme;
"Service Provider" ?We? or ?Our? means the Service Provider named in Part A of the Schedule;
"Services" means the services offered by the Service Provider to its clients and prospective clients, more particularly described at paragraph 3.1 of these Terms and Conditions;
"Terms and Conditions" means the terms and conditions set out hereunder.
2.Application for Participation in Programme
By completing and submitting the Application you:
2.1 Warrant that you are authorised to complete the Application on behalf of the person or entity applying to participate in the Affiliate Programme and, in the case of an individual, that you are over the age of 18 years;
2.2 Warrant that you have fulfilled all registration and/or other requirements of all jurisdictions and regulatory bodies to the extent that such registration, qualification and/or other requirements are applicable to you during the term of this Agreement and will remain in strict compliance with all the foregoing;
2.3 Agree that acceptance into the Affiliate Programme will be at the sole discretion of the Service Provider whose decision in that regard will be final;
2.4v Agreee that if your Application is accepted your participation in the Affiliate Programme will be governed by these Terms and Conditions and any client introduced shall be governed by the Service Provider?s client agreement; and?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????
3.1 We provide services to clients for online execution of transactions in financial instruments including contracts for difference and spread trades, across several different asset classes including indices, foreign exchange, individual equities and commodities.
3.2 You believe that you will be able to introduce clients for our Services.
3.3 In consideration for the introduction by the Affiliate of any client who subscribes and is accepted by the Service Provider as a client to whom it agrees to provide the Services, the Service Provider will pay the Affiliate the Fee. Fees shall be paid monthly in arrears, within 10 business days of the end of each calendar month. The Affiliate acknowledges that the Service Provider may disclose to the clients that commission fees are being paid in relation to their introduction to the Service Provider.
3.4 The Service Provider will from time to time inform the Affiliate of the type of client it ideally wishes to provide its Services.
3.5 The Service Provider will review the activities of the Affiliate and their introduced clients as necessary throughout the term of this Agreement.
3.6 The Service Provider may in its sole discretion, without giving any reasons for any such decision, accept or reject or otherwise decline to deal with any client introduced by the Affiliate and will be under no obligation to provide its Services to any such client.
3.7 For the avoidance of doubt, no Fee shall be payable to the Affiliate in respect of the introduction of a client who is an existing client of the Service Provider at the time of the introduction or was such a client in the previous 12 months.
3.8No Fee shall be payable to the Affiliate where a client is found to have abused the Services.
4.No Agency or Partnership
4.1 The Affiliate will not hold itself out as an agent, representative or employee of the Service Provider or as being authorised to bind the Service Provider in any transaction or investment. Unless otherwise agreed by the Service Provider in writing, any marketing, promotional material or correspondence issued by the Affiliate will be in the Affiliate's own name.
4.2 The Parties are each entering into and will perform this Agreement for their own individual purposes as independent principals. Nothing in this Agreement or its implementation is intended to create or imply the existence of a partnership or joint venture of any form or type or for any purpose whatsoever, a relationship of principal and agent or employer and employee between the Parties.
5.Duration and Termination
5.1 These Terms and Conditions will take effect from the date that the Service Provider accepts the Application and notifies the Affiliate of its acceptance. Thereafter, they shall continue to govern the relationship between the Parties until terminated in accordance with this clause 5.
5.2 Either Party may terminate this Agreement at any time without cause by giving no less than one month?s written notice to the other.
5.3 Either Party may terminate this Agreement immediately on written notice to the other Party in the event of the insolvency, bankruptcy or administration of the other Party, or if a resolution is passed or an order is made for the winding up of the other Party, or if the other Party ceases or threatens to cease to carry on business or if there is a change of control in respect of the other Party to which the terminating Party reasonably objects (or any analogous event).
5.4 The Service Provider may terminate this Agreement immediately on notice to the Affiliate in the following circumstances:
5.4.1 If the Affiliate fails to obtain, or ceases to hold, any licence and/or authorisation required to carry out the activities contemplated by this Agreement;
5.4.2 If the Affiliate fails to introduce any client to whom the Service Provider accepts to provide the Services or, if accepted, the client does not take up the Services or the Affiliate fails to sustain an active client base;
5.4.3 If a client introduced by the Affiliate is reasonably believed by the Service Provider to have abused the Services, including by engaging in the practice of scalping, latency trading, or has acted in concert with the Affiliate in trading in a manner designed (or otherwise intended) to artificially increase commission or any other payment payable to the Affiliate under this Agreement;
5.4.4 If the Affiliate is in breach of these Terms and Conditions;
5.4.5 if any regulatory or material legal investigations are carried out into the commercial affairs of the Affiliate;
5.4.6 if the Service Provider determines that the Agreement must be terminated in order for the Service Provider to be able to comply with applicable laws or regulations;
5.4.7 in the event of the death or mental incapacity of the Affiliate; or
5.4.8 the Affiliate breaches, or the Service Provider reasonably believes that the Affiliate has breached, any representation or warranty, given under this Agreement.
5.5 With effect from the termination date where this Agreement is terminated under clause 5.4, no further Fee will be payable to the Affiliate.
5.6 If the Agreement is terminated for any other reason than those stipulated in clause 5.4, the Service Provider will pay the Affiliate the Fee for a period of 3 months from the termination date.
5.7 The provisions of clauses 5 to 10 of this Agreement shall survive the expiration or the termination of this Agreement for any reason.
6. Representations and Warranties
6.1 The Affiliate warrants that during the continuance of this Agreement the Affiliate will:
6.1.1 not do anything or omit to do anything which would or may constitute a breach of any laws or regulations applicable to the Affiliate in any jurisdiction (including all applicable rules and regulations relating to anti-bribery and anti-corruption) (the ?Regulations?), or which would or may result in the Service Provider breaching any such Regulations;
6.1.2 hold (and continue to hold) all regulatory approvals, permissions, licences and consents required by the Regulations for its performance of this Agreement and will, on request, provide evidence of such authorisation and/or licencing;
6.1.3 promptly notify the Service Provider of any investigations or legal proceedings that have been initiated which may affect its performance under this Agreement;
6.1.4 if required by any Regulations, disclose its practices for receiving a Fee to introduce clients;
6.1.5 comply with any request(s) from any regulatory authority which the Service Provider is subject to, with such request coming either directly from the relevant regulatory authority or from the Service Provider in regard to any regulatory investigation;
6.1.6 disclose any information which the Affiliate is aware of that may affect the relationship the Service Provider may or does have with a client introduced by the Affiliate;
6.1.7 not make any statement that is defamatory, disparaging or derogatory of the Service Provider or do, omit to do, or permit to be done any act that will or may weaken, damage or be detrimental to the Service Provider or the reputation or goodwill association with the Service Provider, its business, intellectual property and/or trademarks;
6.1.8 not issue any advertisement or distribute any promotional material, whether on the internet or otherwise, about the Service Provider, except the Service Provider's own promotional material, without the Service Provider's express written consent. Any advertisement that, directly or indirectly, promotes the services of the Service Provider will be fair and not misleading and will include the appropriate risk warning;
6.1.9 not target any marketing activities at: (a) persons under the age of 18; or (b) citizens or residents of countries on the Service Provider?s prohibited countries list (such as the USA where it is illegal to offer its citizens the Service Provider?s products or services). The prohibited countries list will be provided to the Affiliate by Service Provider and updated from time to time;
6.1.10 only introduce potential clients whose personal information it has obtained lawfully, legitimately and in good faith;
6.1.11 not introduce any potential client if such introduction would, or is likely to, result in the Affiliate or the Service Provider breaching any:
data protection right of any potential client in any jurisdiction where the potential client has any such right; and/or
law or regulation to which either the Service Provider or the Affiliate may be subject; and/or
third party contractual or non-contractual arrangements including any non-solicitation, non-enticement or non-compete agreements; and/or
obligation of confidentiality whether to the client or any third party.
6.1.12 only introduce potential clients of good reputation and good standing, and whose assets are, to the best of its knowledge, not of illegal origin.
7.1 The Affiliate agrees to indemnify the Service Provider against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Service Provider arising out of or in connection with:
7.1.1 any breach of the representations or warranties contained in clause 6;
7.1.2 the Affiliate?s breach or negligent performance or non-performance of this Agreement; and
7.1.3 any claim made against the Service Provider by a client arising out of or in connection with the provision of the Services, to the extent that such claim arises out of any misrepresentation made by the Affiliate or advice given to the client as an inducement to take up the Services.
7.2 In this clause, a reference to the Service Provider shall include any associated entity of the Service Provider involved in the provision of the Services.
8. Limitation of Liability
8.1 Subject to clause 8.3, the Service Provider shall not be liable to the Affiliate, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in?connection with this Agreement for: (a) loss of profits; (b) loss of sales or business; (c) loss of agreements or contracts; (d) loss of anticipated savings; (e) loss of or damage to goodwill; (f) loss of use or corruption of software, data or information; and (g) any indirect or consequential loss.
8.2 Subject to clause 8.3, the Service Provider's maximum liability to the Affiliate, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to an amount equal to any outstanding Fee owed by the Service Provider to the Affiliate in respect of client introductions made in accordance with the criteria set out in the Schedule before the termination of this Agreement.
8.3 Nothing in this Agreement shall limit or exclude the Service Provider's liability for: (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability which cannot be limited or excluded by applicable law.
9.1 Each Party warrants and undertakes to the other that it will comply in full with all of its obligations under the Data Protection Laws, whether as a data controller, a data processor or otherwise, and will take all reasonable care in relation to the same.
9.2 During the normal course of business conducted under this Agreement, the Service Provider may share with the Affiliate certain data regarding clients introduced to the Service Provider by the Affiliate.
9.3 In the event that client personal data is provided to the Affiliate, the Affiliate warrants that all such data shall be held in the strictest confidence, and only used for the specific purpose provided and shall be securely destroyed once the purpose have been fulfilled.
10.1 Each Party hereby agrees that the terms of this Agreement and any information that either Party may receive from the other, which information is not otherwise obtainable in the public domain, will be maintained by the receiving Party in the strictest confidence and not disclosed to any third party without the consent of the other Party; provided, however, that the receiving Party shall be permitted to provide such information:
10.1.1 to such of its professional advisers as is reasonably necessary to advise on this Agreement; or
10.1.2 to the extent that the disclosure is required by law or by an order of any court or any regulatory, judicial, governmental or similar body; or
10.1.3to protect that Party?s interest in any legal proceedings; or
10.1.4 with the written consent of the other Party.
11.1The Service Provider may amend these Terms and Conditions, including the terms of the Schedule, at any time upon the provision of thirty (30) days? written notice. In the event that the Affiliate does not accept the amended terms, the Affiliate must provide written notice of termination to the Service Provider and, thereupon, on the intended effective date of variation this Agreement will automatically terminate.
11.2 If such notice is not received by the Service Provider the Affiliate will, by continuing to introduce clients to the Service Provider, be deemed to have accepted the amendment(s). Any amended agreement will supersede any previous agreement between the Parties on the same subject matter.
12. Introduction Costs
12.1 The Affiliate shall be solely responsible for all costs and expenses incurred by the Affiliate in connection with the introductions effected under this Agreement.
13.1 The Affiliate may not assign any of its rights and obligations under this Agreement without the prior written consent of the Service Provider.
13.2 This Agreement shall be binding upon and enure to the benefit of the Parties and their respective permitted successors and assigns.
14.1 A notice to be given under this Agreement shall be in writing and may be delivered by hand, sent by pre-paid first-class post, recorded delivery or special delivery or sent by email, in each case to the relevant address specified in Part A of the Schedule.
14.2 ?Delivery of a notice is deemed to have taken place:
14.2.1 if delivered by hand, at the time the notice is left at the address,
14.2.2 if sent by registered post on the third Business Day after posting,
14.2.3 if sent by email, following the delivery of a read receipt or the next Business Day irrespective of read receipt having been received,
in each case, unless such deemed receipt would occur outside business hours, in which case deemed receipt will occur on the next business day.
14.3 For the purposes of this clause 14, the contact addresses for the Parties are as follows:
14.3.1 Notices to the Service Provider shall be given to the address and email address shown in Part A of the Schedule;
14.3.2 Notices to the Affiliate shall be given to the address and email address shown in Part A of the Schedule.
14.4 This clause 14 does not apply to the service of any proceedings or other documents in any legal action.
15. Entire Agreement
15.1 These Terms and Conditions constitute the entire agreement and understanding between the Service Provider and the Affiliate. They supersede all previous agreements, representations or arrangements whether made orally or in writing made before the Service Provider's acceptance of the Application.
15.2 The Affiliate acknowledges that in entering the Affiliate Programme, the Affiliate does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty that is not set out in these Terms and Conditions.
16.1 If any provision of these Terms and Conditions or part-provision thereof is or becomes invalid, unenforceable or illegal, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.
16.2 Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
17. Third Party Rights
17.1 No person other than the Service Provider and the Affiliate will have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of these Terms and Conditions.
18. Governing Law and Jurisdiction
18.1 These Terms and Conditions and any dispute or claim arising out of or in connection with them or their subject matter (including non-contractual disputes or claims) will be governed by and construed in accordance with the law of England and Wales.
18.2 Each Party irrevocably agrees that the courts of England and Wales have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
Last updated: 5th August 2020